Judge Merrick Garland: A Moderate Liberal on Election Law Issues, With Questions About Boldness

I have now had a chance to review the substantive election law decisions of Judge Merrick Garland that my research assistant and I have identified (listed after the jump). With the caveat that the job of a lower court judge is to implement the Supreme Court’s rulings and the job of a Supreme Court Justice is to make those rulings not bound by a higher court, my view is that a Justice Garland would be moderately liberal on election law issues, probably voting with the four more liberal Justices in most election cases. I suspect he will be very willing to uphold challenged campaign finance regulations, especially disclosure regulations; that he would support relatively strong readings of the scope of the Voting Rights Act in protecting minority voting rights and voters’ rights in general; and that he would carefully balance the First Amendment rights of political parties and government interests in party cases, but not be very generous to third party claims. The big question is how far he would be willing to go in overturning or greatly extending precedent. For example, I am unsure given the kind of judicial restraint and cautiousness he has shown so far whether he would be a fifth vote to overturn Citizens United. I don’t know what he would do about partisan gerrymandering. And I do not expect him to be bold on voting rights: witness his decision on a 2-1 district court panel rejecting the right of D.C. residents to vote in U.S. House elections. Below is a bit more detailed analysis on these points.

Campaign finance. Yesterday I noted that we should not read too much into Judge Garland’s vote in the SpeeechNow case, the case which established Super PACs. As I explained that unanimous ruling was compelled by the Supreme Court’s Citizens United decision. Far more important to understanding Judge Garland’s views in this area are Wagner v. FEC (2015), a case upholding the ban on government contractors making campaign contributions to federal candidates, and NAM v. Taylor (2009), a case upholding disclosure provisions relative to lobbyists. Wagner was a majority en banc decision, meaning liberals and conservatives signed on to the opinion and so the result was not all that controversial. But the way that Judge Garland wrote the decision indicates that he accepts Congress’s role in crafting reasonable campaign finance regulations aimed at protecting government interests. Judge Garland could have written the opinion in a reluctant way, noting that Supreme Court cases like Citizens United and McCutcheon may have undermined the constitutionality of total bans on contributions by any class of contributors. But Judge Garland did not write such a decision (as we recently saw another DC panel do in a disclosure case). He wrote an opinion which was thoughtful, meticulous, and a full-throated endorsement of the ban on contractor contributions. This reads to me as an opinion of a judge who believes in reasonable regulation. The same is to be said for his NAM decision, which carefully applies precedent, and is not reluctant to uphold disclosure requirements in the face of unsubstantiated claims of harassment. the judge also signed a 2008 decision, Shays v. FEC, which required the Federal Election Commission to craft tougher regulations to implement the campaign finance law.

The harder question is what a Justice Garland would do, if faced on the Supreme Court with the opportunity to overturn Citizens United. On the merits, I have little doubt he would have been in the dissent in the original Citizens United case. But the question is one of stare decisis (respect for precedent) now. Would he be willing to overturn such a case, just a few years after the controversial ruling? My guess is that his would be a struggle for him, less about the merits of the case and more about the proper role of the Justice (particularly if he becomes the new swing Justice) on a Court that is ideologically and politically divided.

Voting rights. Judge Garland has not decided many voting rights cases, but one that is important is Florida v. U.S. (2012). In that case, the question was whether Florida, which was partially covered by the Voting Rights Act, was entitled to preclearance for its cutbacks in early voting (as well as for some other changes). Judge Garland sat on a three judge district court that issued a per curiam (unsigned) opinion, so we do not know if he was an author. But I would suspect he had a big hand in crafting this opinion which again is erudite and careful. The judges reached the conclusion that Florida’s cutbacks in early voting violated the Voting Rights Act because Florida could not show that the changes would not make minority voters worse off. The court essentially told Florida it had to keep the same number of hours of early voting as it had offered before to get preclearance. The court approved other changes to Florida election law, finding they would not make minority voters worse off. The Supreme Court eliminated preclearance the next year in the Shelby County case, and so this precise holding would no longer have direct relevance. Nonetheless, the tone of this opinion is one who takes seriously to protect voting rights.

Judge Garland seems much less likely to go out on a limb, however. He was in a majority in a 2-1 per curiam case, Adams v. Clinton (2000), rejecting D.C. residents’ attempts to get courts to declare they have the right to representation in Congress. Again we have a very scholarly opinion, but this is one that leaves the question of DC representation to the political process. The dissenter read the Constitution to require DC representation in Congress. (The Supreme Court affirmed the Garland position.)

Political Parties.Judge Garland does not seem overly protective of third party voting rights, deciding in Libertarian Party v. DC Board of Elections (2012) that a third party had no right to have the number of write-ins tallied for its candidates. (Richard Winger, who cares deeply about third party issues, disagrees strongly with Garland’s position in this case, but sees his overall record on third parties as “mixed”.). But the liberal Justices on the Court have not always been great protectors of third party rights, and I don’t expect that to change no matter who is chosen for the Court. Perhaps more interesting, given the current machinations over a possible constested Republican convention this summer, is Judge Garland’s opinion in LaRouche v. Fowler (1998). The case involved various challenges that fringe candidate Lyndon LaRouche brought against the DNC for how it conducted its convention. Much of the opinion deals with whether political parties are subject to preclearance under the (now-moribund) Section 5 of the Voting Rights Act. But in the latter part of the opinion, Judge Garland address constitutional claims against the Democratic party, and specifically whether the delegate rules at a convention are subject to judicial review. The opinion was careful and thoughful, balancing the hybrid nature of political parties as state actors and as private actors entitled to First Amendment rights. Ultimately he sided with the party’s rights to decide its own nominees. Here’s a snippet:

Moreover, the Party’s interest is not merely legitimate. Here, the associational rights of the Democratic National Party are at their zenith. The Party’s ability to define who is a “bona fide Democrat” is nothing less than the Party’s ability to define itself. In Eu, for example, one of the challenged state laws “prevent[ed] party governing bodies from stating whether a candidate adheres to the tenets of the party or whether party officials believe that the candidate is qualified for the position sought.” 489 U.S. at 223, 109 S.Ct. 1013. The Court struck the law down. “Freedom of association,” Justice Marshall said, “means … that a political party has a right to ‘identify the people who constitute the association’ … and to select a ‘standard bearer who best represents the party’s ideologies and preferences.’ ” Id. at 224, 109 S.Ct. 1013 (quoting Tashjian, 479 U.S. at 214, 107 S.Ct. 544, and Ripon, 525 F.2d at 601 (Tamm, J., concurring)); see also LaFollette, 450 U.S. at 122 n. 22, 101 S.Ct. 1010 (“ ‘Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association’s being.’ ”) (quoting L. TRIBE, AMERICAN CONSTITUTIONAL LAW 791 (1978))…

The answer to this aspect of LaRouche’s complaint is that the Party’s First Amendment rights extend not only to defining itself, but also to determining how to define itself. The Supreme Court made this point in both Cousins and LaFollette by upholding the Party’s right to determine who could select its delegates, notwithstanding the states’ views that a different process would be more appropriate. See, e.g., LaFollette, 450 U.S. at 124, 101 S.Ct. 1010 (“A political party’s choice among the various ways of determining the makeup of a State’s delegation to the party’s national convention is protected by the Constitution.”). The Court faced a similar question again in Eu, where the California Elections Code dictated, among other things, the organization and composition of the state parties’ official governing bodies. To ensure fairness to the state’s various regions, the Code required that the position of party chair rotate between residents of northern and southern California. See 489 U.S. at 216, 109 S.Ct. 1013. Citing its decisions in Cousins and LaFollette, the Court struck the law down, saying: “[A] political party’s determination … of the structure which best allows it to pursue its political goals is protected by the Constitution. Freedom of association also encompasses a political party’s decisions about the identity of, and the process for electing, its leaders.” Eu, 489 U.S. at 229, 109 S.Ct. 1013 (internal quotations and citations omitted). “[A] State cannot,” the Court said, “substitute its judgment for that of the party as to the desirability of a particular internal party structure.” Id. at 233, 109 S.Ct. 1013.

This court reached the same conclusion in Ripon, where we rejected the contention that the Equal Protection Clause required the Republican Party to allocate its national convention delegates on a one-person, one-vote basis. In letting stand the Party’s practice of awarding “victory bonuses” to states voting Republican in prior elections, we observed:

A party is …. more than a forum for all its adherents’ views. It is an organized attempt to see the most important of those views put into practice through control of the levers of government. One party may think the best way to do so is through a ‘strictly democratic’ majoritarianism. But another may think it can only be done (let us say) by giving the proven party professionals a greater voice….

A party may, of course, pay heavily at the polls for the perception that it treats its members, delegates, or candidates unfairly. But that is a matter for the party to weigh, and for the people to decide in the general election. It is not a basis upon which a court can intervene as long as the party’s processes rationally advance its legitimate interests.

Rule 11(K) and the Fowler letter were issued pursuant to the authority duly granted to the DNC and Chairman Fowler by the Charter and Bylaws of the Democratic Party.35 If LaRouche disputed Fowler’s authority or conclusions, the place to take that dispute was to the national convention’s Credentials Committee and, if he received no satisfaction, to the floor of the convention itself.36 As the Supreme Court said in O’Brien, “[i]t has been understood since our national political parties first came into being as voluntary associations of individuals that the convention itself is the proper forum for determining intra-party disputes as to which delegates shall be seated.” 409 U.S. at 4, 92 S.Ct. 2718.37 Because the First Amendment protects the decisions made by defendants in this case, we are unable to afford plaintiffs the relief they seek.

Conclusion.Judge Garland, more than anything else, appears to be a thoughtful and scholarly judge who takes serious claims seriously and who shows liberal, but not radically liberal, leanings in election law cases. Whether he would pass a Bernie Sanders or Hillary Clinton litmust test to overturn Citizens United is highly doubtful. If faced with the chance, he could well become a bold Justice; who knows? But his record of caution and incrementalism says that would be no sure bet.

Cases decided on merits heard by Judge Garland (excluding cases on issues such as standing):